This is to keep you advised of a problem that will impact compliance efforts
after new Subpart M--Fall Protection is published later this year (September
is current target date). That Subpart contains provisions for Fall Protection
Plans which allow certain employers to evaluate the construction site and
determine the type of fall protection system to be used and where it is to be
used. If the contractor determines that it is infeasible or would create a
greater hazard to provide any system, he sets this forth in the safety plan
and proceeds accordingly. For "good actors" this concept can function quite
well. But there is a compliance problem with "bad actors" who use inferior
plans with poor conclusions to support their intention to not provide fall
protection. The standard contains no factors by which to judge the adequacy
of a plan. Consequently, it will be very difficult for a compliance officer
to prove that a plan contains a bad hazard analysis or that the determination
of infeasibility is based on bad judgement.

My office has had several discussions with Safety Standards on this issue
but no guidelines have been developed. This will also be a problem with the
Safety and Health Programs standard.

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